This Stock
Purchase Agreement is dated as of February 23, 2009 (this
“ Agreement ”), between OPKO Health, Inc., a
Delaware corporation (the “ Company ”), and the
purchasers listed on Annex A hereto (collectively, the
“ Purchasers ”).
WHEREAS, the
Company desires to sell to Purchasers, and Purchasers desire to
purchase from the Company, shares of the Company’s common
stock, par value $.01 per share (the “ Common Stock
”), on the terms and subject to the conditions set forth in
this Agreement (the “Transaction”).
WHEREAS, the
Purchase Price and the Shares (as hereinafter defined) issued shall
be allocated among the Purchasers in accordance with Annex
A.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained in
this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties agree as
follows:
Purchase and Sale of Common
Stock
1.1 Purchase
and Sale of the Shares . Subject to the terms and conditions
hereof, the Company hereby agrees to issue and sell to Purchasers,
and Purchasers hereby agree to purchase from the Company,
20,000,000 shares of Common Stock (the “Shares”) at a
purchase price of $1.00 per share for an aggregate purchase price
of $20 million (the “ Purchase Price
”).
1.2 Closing
. The closing of the issuance and sale of the Shares (the “
Closing ”) shall take place at the Company’s
offices in Miami, Florida on, or as soon as possible following the
later of (i) the date which is twenty (20) days after the
Company first mails to stockholders an Information Statement on
Schedule 14C notifying stockholders that the Transaction was
approved by the written consent of stockholders holding a majority
of the voting power of the outstanding capital stock of the Company
or (ii) the expiration or termination of any waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the “HSR Act”), and the rules of the Federal
Trade Commission relating to the HSR Act (the
“Closing”). As payment in full for the Shares being
purchased by them at the Closing, Purchasers shall pay to the
Company the Purchase Price by wire transfer.
The Company and
Purchasers shall cooperate with each other and use their respective
commercially reasonable best efforts to take or cause to be taken
all actions, and do or cause to be done all things, necessary,
proper or advisable under this Agreement and applicable laws and
regulations to consummate and make effective the sale of the Shares
(the “ Sale ”) and the other transactions
contemplated by this Agreement as soon as practicable, including
preparing and filing as promptly as practicable all documentation
to effect all necessary applications, notices, petitions, filings
and other documents and to obtain as promptly as practicable all
permits, consents, approvals and authorizations necessary or
advisable to be obtained from any third party and/or any
governmental entity in order to consummate the Sale or any of the
other transactions contemplated by this Agreement.
Representations and Warranties of
the Company
The Company
represents and warrants to Purchasers as of the date hereof as
follows:
3.1
Authorization of Agreements, etc . The execution and
delivery by the Company of this Agreement, the performance by the
Company of its obligations hereunder, and the issuance, sale and
delivery of the Shares have been duly authorized by all requisite
corporate action and will not result in any violation of, be in
conflict with, or constitute a default under, with or without the
passage of time or the giving of notice: (a) any provision of
the Company’s Certificate of Incorporation, as amended, or
Bylaws, as amended; (b) any provision of any judgment, decree
or order to which the Company is a party or by which it is bound;
(c) any material contract or agreement to which the Company is
a party or by which it is bound; or (d) any statute, rule or
governmental regulation applicable to the Company, except where
such violation, conflict, or default would not have a material
adverse effect on the Company.
3.2 Valid
Issuance of Common Stock . The Shares have been duly authorized
and, when issued, sold and delivered in accordance with this
Agreement for the consideration expressed herein will be validly
issued, fully paid and nonassessable with no personal liability
attaching to the ownership thereof and will be free and clear of
all liens, charges and encumbrances of any nature whatsoever except
for restrictions on transfer under this Agreement and under
applicable Federal and state securities laws.
3.3
Validity . This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with
its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors’ rights
generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other
equitable remedies.
3.4 Brokers and
Finders . Neither the Company nor any of its subsidiaries,
officers, directors or employees has employed any broker or finder
or incurred any liability for any brokerage fees,
commission
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